Journal of

Criminal Law and Criminology

Number 4

Vol. II ● No. 2

Autumn 2014 – Winter 2015

Managing Editor: Vahid Eshtiagh

Editor-in-Chief: Mohammad Ashoori

CONTENTS

Articles

International Criminal Court and appropriate Law-Making Policy of Islamic Republic of Iran for Criminalizing Sexual Violence
Zohreh Mousavifar (Ph.D.)

Evolution of the Principle of Legality of Crime about Crime against Humanity in the light of Development of International Criminal Courts
Mahdi Momeni (Ph.D.)

The Effects of Presumption of Non-authority in Criminal Law in the light of Public Law Doctrines
Azadeh-sadat Taheri (Ph.D.) & Mohammad-Ali Rajab

Child Soldiers Recruitment in International Criminal Law
Seyed Alireza Mirkamali (Ph.D.) & Sahar Pourhasan Ziveh

Infringement of Trademark Rights: Waivable or non- Waivable Crime?
Mohsen Sadeghi (Ph.D.)

Implications of the Non-Reciprocity in the International Criminal Law
Haleh Hosseini Akbarnezhad (Ph.D.)

Articles

International Criminal Court and appropriate Law-Making Policy of Islamic Republic of Iran for Criminalizing Sexual Violence

Zohreh Mousavifar (Ph.D.)
Assistant Professor in International Law at Islamic Azad University, Bandar-e-Anzali Branch

Abstract:
Established mechanisms of International Criminal Court may put the
non-member states in unwanted position of applying court’s
jurisdiction on crimes committed by the nationals of that state or
crimes committed in the territory of that state. These crimes include
various forms of sexual violence which are enumerated in articles 7
and 8 of Statute under the heading of crimes against humanity and
war crimes. The sole solution would be using potentials of national
law to prosecute and punish perpetrators of international crimes
including sexual violence against women as a substitute for
proceedings of International Criminal Court. This means the
necessity of criminalizing sexual violence in national legal systems,
addressing current challenges and going beyond them. This issue is
addressed in this paper in a descriptive-analytical method.

Keywords:
International Criminal Court, law-making policy, sexual
violence, criminalization, crimes against humanity, war crimes.

Evolution of the Principle of Legality of Crime about Crime against Humanity in the light of Development of International Criminal Courts

Mahdi Momeni (Ph.D.)
Assistant Professor in Criminal Law & Criminology at Payame-Noor University, Tehran Branch

Abstract:
The analytic assessment of the statutes and jurisprudence of the
international criminal courts points out that the principle of legality
of crime, about crime against humanity, has passed through three
stages; denial, relative progress, and the necessity of predominance.
The courts of first generation denied the ruling of this principle in
scope of international criminal law, but the courts of the second and
the third generation, with relative progress, helped the ruling of this
principle. Finally, the International Criminal Court (ICC) felt the need
to consider the ruling of the principle of legality of crime, about
crime against humanity, as one of the general principles of the
criminal law.
This article tries to answer the question that what changes the
principle of legality of crime, on crime against humanity, in the
process of evolution of international criminal courts, has gone
through, and to what extent the current situation is considered to be
desirable and useful; with this hypothesis that the developments
concerning the ruling of the principle of legality in this respect have
been in an increasing procedure, yet it is far from the desirable
status.
In conclusion, although the doctrine of legality has replaced the
doctrine of justice, resorting to analogy is a harm which still
threatens the principle of legality of international crimes.
The solution is that the criminal rule, when representing
criminalization, should express the definition of crime with offering a
comprehensive definition rather than offering a vague concept for
numbering the instances (examples). More than, it had better leave
the recognition of the examples to the judge himself.

Keywords:
the principle of legality, crime against humanity, International Criminal Court.

The Effects of Presumption of Non-authority in Criminal Law in the light of Public Law Doctrines

Azadeh-Sadat Taheri (Ph.D.)
Assistant Professor at University of Semnan
&
Mohammad-Ali Rajab
Ph.D. Student at University of Tehran

Abstract:
Following the usual dichotomy in law, criminal law can be
categorized under the title of public law. This classification must
reasonably be followed by some particular subsequences and
advantages as well as being rooted in a reasonable basis – including
the repercussion of publicness in criminal law. There are two
particular characteristics governing on public law: first the principle
of incompetence of public authorities and the necessity of the
competence being nominated case by case; and the second, the
requirement of precise clarification of mechanisms and procedures
of applying public authority. The criminal law being a sub-section of
public law must reduplicate both characteristics in compliance with
which its rules and regulations should be interpreted. The present
article is an attempt to represent and explain these qualifications.

Keywords:
criminal law, incompetence, public authority, public law, jurisdiction, jurisprudence.

Child Soldiers Recruitment in International Criminal Law

Seyed Alireza Mirkamali (Ph.D.)
Assistant Professor at Shahid Beheshti University
&
Sahar Pourhasan Ziveh
MA in Criminal Law and Criminology

Abstract:
Children are recruited by various forms in armed conflicts. UN-based
International community has criminalized it as one of the examples
of war crimes and predicted for its perpetrators penal sanctions. This
article seeks to study and answer to this question: how is evaluated
the effectiveness of international community’s legislative criminal
policy vis-á- vis this phenomenon. This paper examines and analyses
the effectiveness of criminal policy by descriptive-analytical method
with regard to and emphasis on the jurisprudence of international
criminal tribunals.

Keywords:
recruitment, international criminal law, war crimes,
children, legislative criminal policy, International Criminal Courts.

Infringement of Trademark Rights: Waivable or non-Waivable Crime?

Mohsen Sadeghi (Ph.D.)
Associate Professor of Faculty of Law and Political Science at University of Tehran

Abstract:
Determining of waivable or non-waivable of crimes has theoretical
and practical benefits. These benefits effects about the crime of
infringement of trademark rights. The importance of this subject is
because of the scarcity of Iranian legal literature related to the
mentioned subject, silence of the Trademark Act of Iran-as special
Act- and ambiguity of Islamic punishment new Act-as general act.
The above reasons have caused divergence of judgments in Iranian
Law. The main question of this article is that: is the infringement of
trademark rights considered as a waivable crime or not? The
hypothesis of this paper is that the mentioned crime should be
considered as a waivable crime. The research method of this article is
based on the library study, interview and comparative view in
Brazilian, Indian and French Laws and their accessible judgments.
This paper constitutes two chapters: the first chapter criticizes the
Iranian Acts and jurisprudence and the second chapter considers
theoretical foundations of the subject. Finally, it suggests clear and
practical solutions to Iranian Legislator and judges.

Keyword:
Waivable and non-Waivable Crimes, Infringement of trademark rights, Act, Jurisprudence.

Implications of the Non-Reciprocity in the International Criminal Law

Haleh Hosseini Akbarnezhad (Ph.D.)
Lecturer in International Law

Abstract:
International criminal law is one of the new branches of international
law that the main purpose of it, is to prosecute, trial and punishment
of the perpetrators of the most serious and gross international
crimes. Prohibition of committing them has been recognized as jus
cogens and all members of the international community have the
duty to prevent it. The nature of this duty is known as erga omnes. In
fact, international crimes violate the fundamental and human values
which constitute the basis of the international community, so the
international criminal law protects the community against the
international crimes and mass violations of human rights. For this
goal, by realizing the criminal responsibility for individuals, it prima
facie regulates some obligations for persons not to commit those
crimes and then addresses the states to cooperate to combat against
the impunity of international crimes and to attempt to prosecute
criminals by application of universal jurisdiction. Nowadays,
humanization the concepts of the international crimes and relating
them to the international conscience collective, changes the nature of
some obligations of states as the non-reciprocal ones toward the
international community, therefore non-reciprocity is realized in
some field of international criminal law. In this article, non-reciprocal
considerations in modern international criminal law will be
discussed.

Keywords:
International Criminal Law, international crimes, international community, cooperation, universal jurisdiction